1 Your tenancy
Your rights in privately rented housing depend on the type of tenancy agreement you have with your landlord. The following information provides a broad set of rules for the most common tenancies - assured and short assured tenancies. If there is any doubt, you should get legal advice to be certain of the type of agreement you have signed or are being asked to sign.
1.1 Short assured tenancy
The most common type of agreement in the private sector is a short assured tenancy, which has been available since 2 January 1989. Your landlord must give you a special form (called an AT5 form) before you sign your tenancy agreement or move in. The form states it is a short assured tenancy. The initial let must be for at least six months otherwise it is not a short assured tenancy. After the initial let period your landlord has the right to reclaim possession of the property. However, short assured tenancies could be for longer, so you may want to discuss this with your landlord to see whether both parties would like a longer period of let.
You can see a sample AT5 form at: www.scotland.gov.uk/tenant/info/forms
If you and your flatmates or housemates have a joint tenancy agreement, you will all have exactly the same rights and responsibilities. This means you are all equally responsible for paying the rent and keeping to the terms of your tenancy agreement.
If you want to end the tenancy, you will need to get the other joint tenants' permission first, because this will end the tenancy for everyone. However, if the other tenants do not want to move out, they can try to negotiate a new agreement with the landlord.
1.2 Assured tenancy
If you rent your property from a private landlord or letting agent, you will probably have an assured tenancy if:
- your tenancy started after 2 January 1989, and
- before the tenancy started, you were not given an AT5 form stating that it was to be a short assured tenancy, and
- the place where you live is rented as a home, and
- it is your only or main home.
An assured tenancy gives you greater security of tenure than a short assured tenancy. This means that it is more difficult for your landlord to require you to leave. If you would like further advice and assistance on assured tenancies, contact your local Citizens Advice Bureau or Shelter Scotland (see section 5 - further advice and support).
1.3 Tenancy agreement
The tenancy agreement must be a written document. Its terms should be agreed between you and the landlord or letting agent before you sign it.
You can see an example of a model tenancy agreement, created by the City of Edinburgh Council, at www.scotland.gov.uk/tenant/info/forms. Your landlord may, however, provide their own style of tenancy agreement, which may still be legally binding. Where there is any doubt you should seek legal advice.
In general, your tenancy agreement will include the following:
- The name and address of the landlord or agent (or both).
- The landlord's registration number.
- The length of the tenancy, with start and end dates.
- Rent: amount due, when it is due, how it should be paid and if it will increase during the tenancy.
- How much is the deposit and possibly which tenancy deposit scheme (see section 4.5) will hold the deposit.
- Who is responsible for internal decoration and internal and external repairs and maintenance.
- How many tenants may occupy the property.
- Any condition or restrictions on the use of the property, for example about pets, guests or smoking.
1.4 Ending your tenancy
If you have a short assured tenancy your tenancy agreement will state how long you will be renting the property. At the end of that time, your tenancy will automatically renew itself unless:
- your landlord gives you written notice that they want you to leave the property;
- you give your landlord written notice that you want to leave at the end of the fixed term; or
- your tenancy agreement states what will happen at the end of the initial fixed term.
If you have an assured tenancy your tenancy agreement may or may not state how long you will be renting the property. If a time period is stated, during this period it will be a "contractual assured tenancy" and your original tenancy agreement may set out how and why your landlord can require you to leave the property. If you continue to live in the property after your original tenancy agreement ends, and if you do not sign a new tenancy agreement with the landlord, your contractual tenancy will be converted into a "statutory assured tenancy" with no fixed end date.
If you want to leave
If you have a short assured tenancy it is important to consider the following:
Ending the tenancy at the end of the fixed term: if you want to leave when the fixed term ends, you should give your landlord written notice. Your tenancy agreement should state how much notice you need to give.
Ending the tenancy before the fixed term ends: your tenancy agreement should say whether or not you can end your tenancy before the fixed term ends, and how much notice you need to give. If your tenancy agreement does not mention this, you may find your landlord can still charge you rent until the fixed term ends, even if you need to move out before this.
If you have an assured tenancy your tenancy agreement should state how much notice you need to give if you wish to leave the property. You must provide your landlord with written notice if you wish to leave.
When your landlord wants you to leave
If you have a short assured tenancy your landlord can give you notice in writing at least two months before the end of the initial fixed term or at any time afterwards that they want possession of the property. They can serve notices during the tenancy to coincide with the agreed termination date. If you do not vacate the property at this time, your landlord can start legal action against you.
To gain possession at the end of a short assured tenancy, your landlord must serve you with a written Notice to Quit and either a Section 33 Notice or an AT6 Notice depending on why they want you to leave. These forms can be viewed at www.scotland.gov.uk/tenant/info/forms.
With an assured tenancy, however, you have greater security of tenure. As highlighted at the start of this section, your tenancy may have no fixed end date. In this situation your landlord must apply for a court order requiring you to leave on the grounds mentioned in section 1.5 below. You cannot be required to leave if none of those grounds apply.
Breach of tenancy
If you breach any terms of the tenancy, your landlord can seek possession using the grounds for regaining possession (see section 1.5).
If you receive a Notice to Quit or AT6 Notice, do not ignore it. If you would like further advice and assistance on this, contact your local Citizens Advice Bureau or your local council's housing office.
1.5 Grounds for landlords regaining possession of their property
There are 17 grounds a private landlord can use to evict an assured or short assured tenant. Grounds 1-8 are mandatory grounds: that is, if they are proved, a Sheriff must grant an order for possession. Grounds 9-17 are discretionary grounds: that is, even if they are proved, a Sheriff will grant a possession order only if they believe it is reasonable to do so. In summary, the grounds are:
- (1) The landlord wants the property to be their own home or the property was previously their own home.
- (2) A lender has repossessed the landlord’s property due to mortgage arrears and wants to sell it.
- (3) Off-season holiday let (i.e. the property is normally rented out as a holiday home).
- (4) Short leases (less than 12 months) between lets to students.
- (5) The property is needed by a minister or full-time lay missionary.
- (6) The landlord intends to carry out major work on the property.
- (7) The tenant has died and the landlord starts the eviction process within 12 months of the death.
- (8) The tenant has three months' rent arrears. This is a mandatory ground, however, Sheriffs may apply discretion where the rent arrears have been caused by a delay in paying housing benefit.
- (9) Suitable alternative accommodation is available to the tenant.
- (10) The tenant was served a Notice to Quit but did not leave.
- (11) Persistent delay in paying rent.
- (12) Some rent is unpaid.
- (13) Breach of the tenancy agreement.
- (14) The tenant has allowed or caused damage to the property or the building's common parts.
- (15) The tenant has used the property for illegal purposes or has caused a nuisance or annoyance to neighbours.
- (16) Damage to the landlord's furniture.
- (17) The property was let to the tenant because of their job and they no longer have this job.